A Broad New Interpretation of the Scope of the West Virginia Medical Professional Liability Act
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May 26, 2021
The West Virginia Supreme Court issued a new memorandum decision which broadly interprets the scope of the West Virginia Medical Professional Liability Act, applying it to entities who were not recipients of health care services. In Brown v. Ohio Valley Health Services & Education Corp. et al., No. 20-0156 (May 20, 2021), the Court affirmed the Circuit Court’s dismissal on the grounds that the Petitioners did not comply with the MPLA’s pre-suit requirements before filing their claim.
The Petitioner, an Emergency Medical Technician, and her employer, Tri-State Ambulance, responded to a request to transport a patient from Ohio Valley Medical Center to a hospital in Columbus, Ohio on December 15, 2016. While en route, the ambulance encountered adverse winter weather conditions and was involved in a wreck in which the patient being transported and one of the ambulance technicians were killed. Brown, the surviving EMT, filed suit against the hospital and related entities asserting causes of action for negligence, carelessness, and/or recklessness, claiming that OVMC knew but failed to disclose that the transport was not medically necessary to save the patient’s life and that dangerous weather was approaching. The failure to disclose allegedly deprived Brown of the information necessary to determine whether the trip should have been made that night. Her employer asserted a claim for equitable subrogation, alleging it incurred losses by paying its insurance deductible and legal fees in connection with litigation initiated on behalf of the decedents. As its insurer settled those lawsuits, the ambulance company alleged that the insurer was a partially subrogated insurer entitled to reimbursement.
Respondents moved to dismiss the complaint on the grounds that Petitioners failed to comply with the MPLA’s pre-suit requirements of providing a notice of claim and screening certificate of merit. See W. Va. Code § 55-7B-6. Petitioners argued that their claims were not covered by the MPLA because liability was alleged to stem from working conditions created by the hospital for engaging emergency services when no emergency existed. The Circuit Court granted the motion to dismiss, finding that the circumstances which set the events into motion was a decision made by healthcare providers and therefore fell under the definition of “health care” pursuant to the MPLA. The appeal followed.
On appeal, Petitioners argued that their claims were not governed by the MPLA as the alleged negligence wasn’t medical negligence, and because the EMT was not a patient under the MPLA. The respondent’s failure to inform her of hazardous working conditions was not medical treatment or a healthcare decision. Further, applying the MPLA’s pre-suit requirement would result in an absurdity because the required Screening Certificate of Merit must be executed by a healthcare provider, who, among other things, treats “injuries or conditions similar to those of the patient.” See W. Va. Code §§ 55-7B-06(b)(2), -7(a)(6). The petitioners also argued that the MPLA likewise is not implicated in the equitable subrogation claim because it has nothing to do with healthcare.
The West Virginia Supreme Court agreed with the underlying court’s interpretation that applying the broad definitions of “health care” and “medical professional liability” in the MPLA, these claims fall under the MPLA, even though the Petitioners are not patients. The Court asserted that the negligence claim is predicated on the respondent’s decision to transport the patient to another healthcare facility. The MPLA specifically includes “medical transport” within the definition of “health care”. Id., § 55-7B-2(e)(2). Furthermore, the definition of “medical professional liability” includes claims that “may be contemporaneous to or related to the alleged tort or breach of contract or otherwise provided, all in the context of rendering health care services.” Id., § 55-7B-2(i). As a result, the Court held that the MPLA governs both the negligence and the equitable subrogation claims, and because the Petitioners did not comply with the MPLA’s pre-suit requirements, the circuit court lacks subject matter jurisdiction over the suit.
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